News & Updates from WAGLAC
Western Attorneys General Litigation Action Committee
February 17, 2020
WAGLAC NEWS
UPCOMING MEETINGS
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WAGLAC Summer Meeting
June 7-10, 2020
Springhill Suites
Bozeman, Montana

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Natural Resource Damages
-Field trip to Butte and Anaconda CERCLA sites
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WAGLAC Fall
Meeting
October 12-13, 2020
The Grove Hotel
Boise, Idaho

-Roundtable discussion of natural resource, environmental, and Indian law cases
-CLE on Indian Law issues
-Announcement and agenda to follow.
ENVIRONMENT
The Navigable Waters Protection Rule (Step Two)
U.S. Environmental Protection Agency (EPA)

"On January 23, 2020, the U.S. Environmental Protection Agency (EPA) and the Department of the Army (Army) finalized the Navigable Waters Protection Rule to define “Waters of the United States” and thereby establish federal regulatory authority under the Clean Water Act. For the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters, provides clear exclusions for many water features that traditionally have not been regulated, and defines terms in the regulatory text that have never been defined before. Congress, in the Clean Water Act, explicitly directed the Agencies to protect “navigable waters.” The Navigable Waters Protection Rule regulates these waters and the core tributary systems that provide perennial or intermittent flow into them. Read the pre-publication version of the final Navigable Waters Protection Rule."
In Settlement with United States and Montana, Atlantic Richfield Agrees to Framework for Cleanup of Mining Contamination in Butte, Montana
US DOJ
February 13, 2020

"The U.S. Environmental Protection Agency (EPA), along with the Justice Department, announced the release of the Butte Priority Soils Operable Unit (BPSOU) consent decree. This document provides the framework for the continued cleanup of mining-related contamination to protect public health and the environment in Butte and Walkerville, Montana. 

The consent decree requires Atlantic Richfield to undertake or finance over $150 million in cleanup actions, provide financial assurances for future cleanup actions, and provide enhanced community benefits through the implementation of end land use plans along the Silver Bow Creek Corridor.

Additionally, EPA Region 8 is releasing an amendment to the 2006 Record of Decision for the BPSOU that will expand cleanup efforts. The amendment will require the removal of contaminated tailings at the Northside and Diggings East Tailings areas as well as contaminated sediment and additional floodplain contamination from Silver Bow and Blacktail Creeks. The amendment will also require the treatment of more contaminated storm water before it flows into the creeks, and the capture and treatment of additional contaminated groundwater. Once executed by the parties and entered by the court, the consent decree will implement this amended remedy.

The release of the consent decree will provide the commissioners of Butte Silver Bow County – who must approve the document before it can be submitted to the court – an opportunity to consider the document in a public forum. This process allows Butte Silver Bow County to inform and educate the public and the county commissioners about the content of the consent decree. Once that process concludes, the county commissioners will vote on whether to approve the document."
Group Asks Court to Block White House's NEPA Changes
Politico Pro
February 13, 2020

"The Southern Environmental Law Center asked a federal court to block the White House Council on Environmental Quality from advancing its proposed changes to rules implementing the National Environmental Policy Act.

The unusual request came as part of an ongoing Freedom of Information Act lawsuit brought by SELC seeking documents related to CEQ's June 2018 advance notice of proposed rulemaking that had sought suggestions for changes to the NEPA regulations."
DOJ Says Environmental Workload 'No Longer Sustainable'
E&E News
February 11, 2020

"The Department of Justice has requested more money to protect the Trump administration's environmental rule changes during the last year of the president's term.

DOJ's request for its Environment and Natural Resources Division comes as the administration proposes deep reductions to energy and environmental programs in other agencies (Greenwire, Feb. 10).

ENRD said the additional $4.8 million would fund land acquisitions for a border wall between the United States and Mexico, support environmental enforcement efforts and bolster the department's defense of regulations supporting energy development."
Attorney General Becerra Files Amicus Brief in Lawsuit Against Monsanto in Support of State Laws Requiring Warnings for Cancer-Causing Products
February 11, 2020

"California Attorney General Xavier Becerra filed an amicus brief in Johnson v. Monsanto, arguing against preemption of state laws requiring warnings for products containing carcinogens. The lawsuit, currently on appeal in the California Court of Appeal, was brought by a plaintiff alleging that he developed non-Hodgkin's lymphoma as a result of using Roundup in the course of his work. Roundup is manufactured by Monsanto and contains glyphosate, a chemical known to California to cause cancer. Following a jury verdict against Monsanto, the superior court awarded compensatory and punitive damages in the amount of $78.5 million for the plaintiff and Monsanto appealed, arguing that the lawsuit and any state laws requiring cancer warnings for products containing glyphosate are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). FIFRA requires that manufacturers register a pesticide with the U.S. Environmental Protection Agency (EPA) before it can be sold or used. The EPA has declined to require a warning label indicating that glyphosate is a cancer-causing agent, despite it being identified as a carcinogen by the International Agency for Research on Cancer and by numerous civil juries. "
BP Vows to go Carbon Neutral by 2050
PoliticoPro
February 12, 2020

"British oil major BP Plc pledged to become carbon neutral across its company, including the fuel it sells to customers, by no later than 2050 in an effort to address climate change.

The announcement, coming a week into new CEO Bernard Looney's tenure, further separates the European oil and gas company from its U.S. rivals and comes after its smaller European peer Repsol made a similar pledge in December. BP's move would cut 415 million metric tons from its operations, the equivalent of taking 88 million cars off the road each year."
President Trump Proposes Deep Energy, Environmental Cuts
E&E News
February 10, 2020

"President Trump's $4.8 trillion fiscal 2021 budget proposal released once again seeks to slash many energy and environmental programs to help shore up national security spending.

Like last year, the White House wants to cut all non-defense discretionary spending by 5%. Non-nuclear spending at the Department of Energy would be cut 29%, EPA would be reduced by 27%, the Army Corps of Engineers would drop 22% and the Interior Department would fall by 13%.

The budget proposal would cut the State Department by 21%, which includes foreign assistance programs aimed at curbing climate change.

Echoing last week's State of the Union address, Trump touted his latest plan as building on an already strong economy."
State Supreme Court Declines to Hear Appeal on Bag and Foam Container Bans
Politico Pro
February 12, 2020

"The Florida Supreme Court, without comment, declined to consider an appeal by Coral Gables after a state appellate court overturned local bans on plastic bags and foam containers.

A few cities and counties across Florida had adopted bans on plastic bags and and polystyrene foam containers — which environmentalists say threaten waterways and aquatic life — after a state Circuit Court ruling in the Coral Gables case in 2017 threw out legislative preemptions on local regulation of the products. The 3rd District Court of Appeal reinstated the preemptions in 2019."
Army Corps Won't Study Trailings Dam Failure at Pebble Mine, Document Shows
Politico Pro
February 11, 2020

"The Army Corps of Engineers is doubling down on its decision not to study the effects of a potential “catastrophic” failure of a mine waste dam for the proposed Pebble Mine in Alaska, according to a preliminary final study obtained by POLITICO.

EPA last year urged the Corps to study how a tailings dam failure would affect downstream areas, including Bristol Bay, a major salmon hatchery."
PFAS Litigation Conference
 
Law Seminar International will be presenting it annual conference on PFAS Litigation Conference in New York on April 29-30.  Many of the leading counsel, scientists, and regulators from around the country participate in this two day program. 

The two day conference will cover liabilities, regulations and litigation arising from PFAS contamination around the country, including panels on the following topics:  

  • An overview of the science of PFAS (unique characteristics, different PFAS compounds, and the state of the art on fate, transport and fingerprinting)  
  • Rob Bilott will present his personal story and the historical perspective from the infamous Parkersburg, West Virginia site and the cases  
  • Update from the AFFF MDL (a panel presentation with one member each from the Plaintiffs’ and Defendants’ Executive Committees on the status of the current AFFF multidistrict litigation)  
  • A summary of Federal and State legislative and regulatory developments regarding PFAS, drinking water and remediation standards, and attendant federalism and preemption issues
  • The impacts of a potential CERCLA designation of some or all PFAS compounds  
  • Federal PFAS liabilities arising from Department of Defense and other federal sites and issues pertinent to the Government Contractor Defense  
  • Insurance issues for evolving contaminants such as PFAS  
  • Natural Resource Damages claims and unique issues regarding PFAS-related injuries  
  • NRD valuation and economic damages arising from PFAS contamination  
  • Remediation, treatment and filtration options for PFAS  
  • Case Studies: A panel discussion of nationally recognized leaders on the factual, legal, and scientific issues, distinctions and common threads that arise at the different types of PFAS sites, including the larger industrial sites, the hundreds of AFFF sites, and bio-solids sites around the country.
 
CWAG supporter Bill Jackson is cochair of the conference and has secured a discount for government attorneys: the list price for the program is $995 and the normal government rate is $745, but if three or more attendees from the same state register, LSI is willing to provide a 50% discount off of the list price of $995, which would be $497.50 for each attendees register from the same state.
 
Last year a number of state assistant attorneys general attended the conference and found it to be very informative.
STATE AG POWERS & DUTIES
Arizona Supreme Court Agrees to Hear Appeal of ABOR Tuition Lawsuit
February 11, 2020

"The Arizona Supreme Court has agreed to hear Attorney General Brnovich's lawsuit against the Arizona Board of Regents (ABOR) for skyrocketing tuition and fees at state universities. The people of Arizona are one step closer to getting to the bottom of why in-state tuition has increased more than 300 percent since 2003.

Arizona’s Constitution requires instruction at the state’s public colleges to be provided “as nearly free as possible.” Instead of answering to taxpayers, the Regents have hid behind a 60-year-old Supreme Court ruling, Arizona State Land Department v. McFate, which even the Court of Appeals said “appears to be flawed.”
INDIAN LAW
Wyo., Navajo Company Agree On Sovereign Immunity Waiver
E&E News
February 14, 2020

"The Navajo Nation's coal company has waived its freedom from being sued as a tribal corporation, but only for state regulators in Wyoming.

The Navajo Transitional Energy Co. signed a limited waiver of sovereign immunity earlier this week.

Under the agreement, the state of Wyoming can enforce mining laws at the Antelope and Cordero Rojo mines, but environmental groups remain barred from taking NTEC to court over permitting, leasing or reclamation issues."
STATE LANDS
Brown Announces 'Historic' Agreement
Mail Tribune
February 10, 2020

"A new deal between Oregon’s timber industry and environmentalists to protect forest waters, modernize logging regulations and create a new conservation plan was announced Monday by Gov. Kate Brown and representatives of both interests."
INDIAN LAW DESKBOOK
Clay Smith, the American Indian Law Deskbook chief editor, summarizes Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. 

Please note, The 2019 Edition now appears on Westlaw under the Secondary Sources/Texts & Treatises category. We anticipate that the hardbound version will be out later this month
Indian Law Case Summaries
All summaries are posted in CWAG's google docs account, accessible through the link below. Should you have any issues with the links, contact Andrea Friedman with any questions.
In Matter of Parental Rights to D.J.S. , ___ P.3d ___, 2020 WL 425062 (Wash. Ct. App. Div. 3 Jan. 28, 2020) State agency failed to provide the active efforts required under the Indian Child Welfare Act, but such failure is subject to the futility doctrine.
Herpel v. County of Riverside , ___ Cal. Rptr. 3d ___, 2020 WL 614894 (Ct. App. 4th Dist. Feb. 10, 2020) County tax on possessory interests held by nonmembers in leased allotted lands is not preempted under  Bracker  balancing standards, 25 C.F.R. § 162.07(c), or 25 U.S.C.A. § 5108.
Spirit Lake Tribe v. Jaeger , ___ F. Supp. 3d ___, 2020 WL 625279 (D.S.D. Feb. 20, 2020) Tribe possessed standing to bring First and Fourteenth Amendment and Voting Right Act claims on behalf of its members, and the second amended stated a claim upon which relief could be granted where it alleged an undue burden from voter identification requirements and intentional discrimination with respect to the requirements’ adoption.
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook  is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook  addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
About WAGLAC
Western Attorneys General Litigation Action Committee
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.
CWAG | CLIVE.STRONG@CWAGWEB.ORG | (208) 850-7792 | WWW.CWAGWEB.ORG
Contributions For WAGLAC Newsletter
We rely on our readers to send us links for the WAGLAC Newsletter. If you have or know of a recent (published in the last two weeks) case, statute or article relating to natural resources, environment, Indian law or federalism that you would like us to consider for inclusion in the Newsletter, please send it to Clive Strong. For a complete, searchable database of all previously published WAGLAC newsletters, please follow the link below.